EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into
this 23rd day of December, 2002, to be effective as of the 23rd day of December,
2002, by and between INSIGNIA SYSTEMS, INC., a corporation organized and
existing under the laws of the State of Minnesota with its principal office
located at 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000, referred to as
"Employer", and XXXX X. XXXXXXXX, whose address is c/o 00 Xxxxxxx Xxxxxx, Xxxx
Xxxxxxx, Xxx Xxxx 00000, referred to as "Employee".
Recitals
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A. Employer is engaged in the business of developing and marketing
in-store promotional products and services to retailers and consumer goods
manufacturers.
B. Employee is qualified to be engaged in the business of Employer as a
Vice President, Coupon Systems, POPS Division of Insignia Systems, Inc.
C. Employer wishes to employ Employee and Employee wishes to be
employed by Employer on the terms and conditions set forth in this Agreement.
In consideration of the mutual promises and such other enumerated
consideration as is set forth in this Agreement, the parties hereto agree as
follows:
Section One
Employment
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Employer employs Employee, and Employee accepts employment with
Employer, on the terms and conditions set forth in this Agreement.
Section Two
Term of Employment
------------------
This Agreement is effective on December 23, 2002 and shall remain in
effect for a five (5) year term or until terminated by either party pursuant to
the termination provisions of this Agreement or unless otherwise agreed upon in
writing between the parties.
Section Three
Duties
------
Employee's title shall be Vice President, Coupon Systems, POPS Division
of Insignia Systems, Inc. Employee shall report to Xxx Xxxxxxxx, Executive Vice
President (or his successor), and Xx. Xxxxxxxx'x immediate superior. Employer
has the power to determine Employee's specific duties, and the manner in which
Employee carries out his duties, provided they are consistent with his title and
position. Employee shall be specifically responsible for development of the
ValuStix (R) brand within the service offering of Insignia POPS and,
furthermore, shall be responsible for the management of creative and operational
services required in the delivery of the ValuStix (R) products and services to
its end users. Employee agrees to devote substantially his full business time
and attention to perform Employee's duties hereunder, provided, however, that
Employee is entitled to engage in graphics and design on a part-time basis as
long as such conduct does not interfere with the performance of his duties
hereunder. Employee shall be located in Port Chester, New York or its vicinity.
Section Four
Compensation
------------
A. During the term of this Agreement and for services performed on
Employer's behalf, Employer shall pay Employee the sum of One Hundred Fifty
Thousand and 00/Dollars ($150,000) computed on an annual basis and payable in
twenty-four (24) equal payments on each of the 15th and last days of each month.
B. For services performed on Employer's behalf, Employer may also pay
Employee an annual bonus in an amount of up to Twenty-five Thousand and 00/100
Dollars ($25,000). The bonus will be based upon Employee's achievement of
pre-determined goals which are mutually agreed upon by Employer and Employee
before January 1 of each year during the term of this Agreement. Any bonus
payable to Employee is due on or before 60 days after the end of each year.
Section Five
Benefits
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During the term of this Agreement, Employee shall be entitled to
receive four weeks of paid vacation per year. Employee shall also be entitled to
receive such life, disability, medical, dental and other insurance benefits, and
shall be entitled to participate in such pension or other retirement plans, and
to receive such other fringe benefits and perquisites, as are being provided by
Employer to other employees in comparable executive positions to that of
Employee but only to the extent that Employee's age, position, medical
condition, or other factors qualify Employee for coverage at standard rates as
other comparably positioned employees of Employer.
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Section Six
Expense Reimbursement
---------------------
Employee shall be entitled to reimbursement for those expenses incurred
by Employee which benefit Employer, including those relating to travel,
entertainment, customer maintenance, and vehicle usage reimbursement.
Section Seven
Trade Secrets
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Employee acknowledges that Employer has, and is expected to develop
certain concepts, information, designs, ideas and materials (regardless of form)
which are used in its business, have great value, and which give Employer an
opportunity to obtain an advantage over competitors who do not know, understand
or use these concepts, information, designs, ideas and materials (collectively
"Trade Secret Information").
Employee agrees that except as may be required by the scope of
Employee's employment with Employer, or expressly agreed upon by Employer in
writing, that Employee will not, during or after Employee's employment with
Employer, use or disclose any Trade Secret Information or permit any person to
examine or copy any Trade Secret Information. This obligation not to use,
disclose, or copy shall survive the termination of this Agreement.
In the event that Employee breaches this Section, Employer shall be
entitled to, among other remedies, injunctive relief prohibiting Employee from
disclosing such Trade Secret Information.
Section Eight
Disclosure and Ownership of Intellectual Property
-------------------------------------------------
Employee agrees to promptly disclose to Employer all discoveries,
improvements, formulas, techniques, know-how, writings, drawings, software, mask
works, and other inventions and works of authorship (whether patentable or
copyrightable) made, conceived, discovered, written, or created by Employee
during the period of his employment with Employer, which relate or result from
the actual or anticipated business of Employer or from the use of Employer's
premises or property (collectively, the "Intellectual Property"). Employee also
acknowledges that the items of Intellectual Property are works made for hire
which are the sole property of the Employer. To the extent any Intellectual
Property does not constitute a work made for hire, Employee assigns to Employer
all right and interest in the Intellectual Property. Employee also agrees to
assist Employer in every way at Employer's expense to protect the Intellectual
Property, and to execute all documents which Employer reasonably determines to
be necessary or convenient for the protection of the Intellectual Property,
including any documents required by the U. S. Patent and Trademark Office, or
the U. S. Copyright Office.
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NOTICE: Minnesota law exempts from this Agreement "AN INVENTION FOR
WHICH NO EQUIPMENT, SUPPLIES, FACILITY OR TRADE SECRET INFORMATION OF THE
EMPLOYER WAS USED AND WHICH WAS DEVELOPED ENTIRELY ON THE EMPLOYEE'S OWN TIME,
AND (1) WHICH DOES NOT RELATE (a) DIRECTLY TO THE BUSINESS OF THE EMPLOYER OR
(b) TO THE EMPLOYER'S ACTUAL OR DEMONSTRABLY ANTICIPATED RESEARCH OR
DEVELOPMENT, OR (2) WHICH DOES NOT RESULT FROM ANY WORK PERFORMED BY THE
EMPLOYEE FOR THE EMPLOYER."
Section Nine
Non-Competition
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Employee agrees that during the course of Employee's employment with
Employer Employee will not engage, directly or indirectly, personally or as an
employee, associate, partner, manager, agent or otherwise, or by means of any
corporate identity or other legal device, in competition in the same or similar
businesses as that of Employer or in any way compete with Employer, nor make any
contact whatsoever with any of Employer's clients (other than on behalf of
Employer), nor will Employee, directly or indirectly, divulge, disclose or
communicate to any person, firm or corporation (other than on behalf of
Employer) relating to the business of Employer including, but not limited to,
names of clients, manner of operation, plans, processes, or other data of any
kind or nature whatsoever, anywhere within the continental United States.
Employee further agrees that for a period of five (5) years after termination of
Employee's employment by Employer (whether such termination of employment is
voluntary or involuntary), that Employee will not keep in Employee's possession
a list of clients of Employer, nor directly or indirectly, either verbally or in
writing, contact the clients of Employer for purposes of soliciting the business
of clients of Employer in connection with a product or program substantially
identical to the ValuStix (R) product or other products or programs offered by
Employer at the time of Employee's termination.
Employee specifically acknowledges receipt of good and valuable
consideration sufficient to support this section and the preceding section of
this Agreement.
Employee also specifically acknowledges and agrees that any violation
or breach of this part of this Agreement, or any part thereof, shall be a proper
subject for injunctive relief or any other remedy available in equity or at law.
Section Ten
Property Rights
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On termination of this Agreement, regardless of how or when termination
is effected, Employee shall immediately return to Employer all of Employer's
property, including, but not limited to, all computer programs, software, or
documentation designed, written, or otherwise developed by anyone other than
Employee during the scope of Employer's employment of Employee under and
pursuant to this Agreement.
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All right, title and interest of every kind and nature, whether known
or unknown, in and to any intellectual property, including but not limited to,
any inventions, patents, trademarks, service marks, copyrights, computer
programs, software, or other documentation invented, created, written,
developed, furnished, produced, or disclosed by anyone other than Employee, in
the course of rendering services to Employer under and pursuant to this
Agreement shall, as between Employer and Employee, be and retain the sole and
exclusive property of Employer for any and all purposes and uses, and Employee
shall have no right, title or interest of any kind or nature in and to such
property, or in or to any results and/or proceeds from such property.
Section Eleven
No Conflict
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Employee represents and warrants to Employer that neither Employee's
execution and delivery of this Agreement nor the performance of or compliance
with the terms and conditions hereof will conflict with, or result in a breach
by Employee of, or constitute a default under, any of the terms, conditions or
provisions of any contract, agreement or other instrument to which Employee is a
party, or any writ, order, judgment, decree, statute, ordinance, regulation or
any other restriction of any kind or character to which Employee is subject, and
will not require the consent, approval or authorization of or notice to any
governmental instrumentality or to any third party.
Section Twelve
Termination of Employment
-------------------------
This Agreement and the employment relationship between Employer and
Employee shall terminate as hereinafter provided.
A. Termination Without Cause. If Employee's employment is
terminated by Employer without cause, Employer shall provide
Employee with no less than sixty (60) days written notice of
such termination.
B. Termination for Cause. If Employer terminates Employee's
employment at any time "for cause", such termination shall be
effective immediately upon written notice provided by Employer
to Employee. Termination shall be "for cause" where it is for
any of the following reasons:
1. Employee commits willful misconduct, fraud or
theft against Employer;
2. Employee refuses or fails in a material respect to
act in accordance with any material and lawful
direction or order of his superior that is reasonable
both in its scope and content and in its relationship
to the duties and responsibilities of Employee, which
failure or refusal is not cured within ten business
days after written
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notice by Employer to Employee, or which reoccurs
after having been cured;
3. Employee is convicted of a felony and the Board
determines, in its sole discretion, that such
conviction inhibits Employee's ability to perform
services hereunder;
4. Employee takes any action in bad faith that has a
material, detrimental effect on the Employer's
reputation or business; or
5. Employee breaches any material term of this
Agreement (not covered by clauses 1-4 above) which is
not cured within ten business days after written
notice by Employer to Employee, or which reoccurs
after having been cured.
C. Voluntary Termination by Employee. If Employee's employment
is terminated voluntarily by Employee, Employee shall provide
Employer with sixty (60) days prior written notice of such
termination; provided, however, Employer may elect, in its
sole discretion, to terminate Employee's employment
immediately upon receipt of Employee's notice of termination.
D. Termination if Purchase Transaction Rescinded. If the
purchase and sale transaction between Xxxx X. Xxxxxxxx, Inc.
and Employer is rescinded, then Employee's employment shall
terminate immediately without any notice required by Employer
to Employee.
E. Termination as a Result of Death or Disability. If Employee
dies or becomes disabled (as hereafter defined), Employee's
employment by Employer shall automatically terminate, such
termination to be effective upon the death or disability of
Employee. For purposes of this Agreement, Employee shall be
deemed to be "disabled" if Employee is diagnosed, in the
reasonable opinion of a qualified physician selected jointly
by Employer and Employee or his legal representative to have a
mental or physical impairment which renders Employee unable to
perform the essential functions of Employee's position with or
without reasonable accommodation, and which inability to
perform, in the reasonable opinion of such physician, will
continue for a period of not less than 90 consecutive days.
X. Xxxxxxxxx. If Employee's employment is terminated by
Employer for any of the reasons set forth in paragraphs B, C,
D or E of this Section, Employee is not entitled to any
severance pay. If, on the other hand, Employee's employment is
terminated pursuant to the provisions of paragraph A of this
Section, Employee shall be entitled to severance pay in an
amount equal to the Employee's base salary amount (less
appropriate
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employment tax withholdings) for a period equal to the greater
of one (1) year or the remaining portion of Employee's initial
five (5) year employment term.
G. Continuation of Benefits. If Employee's employment is
terminated for any of the reasons set forth in paragraphs B,
C, D, or E of this Section, Employee is not entitled to the
continuation of any Employer-provided benefits (for which
Employer is responsible for payment). If, on the other hand,
Employee's employment is terminated pursuant to the provisions
of paragraph A. of this Section, Employee shall be entitled to
the continuation of any Employer-provided benefits, for which
the Employee is eligible even though no longer employed by
Employer, for a period equal to the greater of one (1) year or
the remaining portion of Employee's initial five (5) year
employment term.
Section Thirteen
Notice
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Any notice required pursuant to this Agreement shall be in writing, and
sent by registered or certified mail to Employer's principal office and
Employee's last known address.
Section Fourteen
Governing Law
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This Agreement shall be governed by the laws of the State of Minnesota.
Section Fifteen
Modification/Waivers
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This Agreement represents the entire agreement between Employer and
Employee. No modification of this Agreement is valid unless it is in writing and
signed by the parties. The waiver of any right or remedy in respect of any
occurrence or event on one occasion shall not be deemed a waiver of such right
or remedy in respect of such occurrence or event on any other occasion.
Section Sixteen
Assignability
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Except as provided in the Royalty Agreement between Employer and Xxxx
X. Xxxxxxxx, Inc., this Agreement is not assignable.
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Section Seventeen
Severability
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If any provision of this Agreement is determined invalid, that
invalidity shall not impair the remaining provisions of this Agreement.
Section Eighteen
Attorney's Fees
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In the event that any action is filed in relation to this Agreement,
the unsuccessful party shall pay to the successful party, in addition to all
sums that either party may be called upon to pay, a reasonable sum for the
successful party's attorneys' fees.
Section Nineteen
Confidentiality
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Employee agrees to keep the terms of this Agreement confidential.
Section Twenty
Counterparts
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This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall constitute the same
agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
INSIGNIA SYSTEMS, INC.
("Employer")
By: /s/ Xxxxx X. Drill
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Xxxxx X. Drill, CEO
XXXX X. XXXXXXXX
("Employee")
/s/ Xxxx X. Xxxxxxxx
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